Kansas 50 Percent Practice Rule for Expert Witnesses Requires Evaluation of All Clinical Practice Including Varied Patient Care Activities

A woman suffered from idiopathic subglottic tracheal stenosis, a narrowing of the trachea below the vocal chords that causes difficulty in breathing. One doctor tried to alleviate the woman’s breathing difficulty by surgically implanting two metal stents in her trachea. The stents caused the development of granulation tissue that further obstructed her trachea. The doctor referred her to a thoracic surgeon at the Washington University School of Medicine in St. Louis, Missouri.


The thoracic surgeon removed the two stents and performed a number of procedures to repair the damage they caused. Eventually, the woman achieved complete relief of her breathing difficulty under the thoracic surgeon’s care.


The woman sued the first doctor for medical malpractice; failure to obtain informed consent; and misrepresentation about the ease with which the first stent could be removed, which induced her consent. The woman identified the thoracic surgeon as her treating physician and her sole expert witness. During his deposition testimony, the thoracic surgeon had difficulty quantifying the amount of time he spent on direct patient care as opposed to teaching, conducting research, or performing administrative tasks in the teaching hospital where he worked.


The defendant filed a motion in limine to exclude the thoracic surgeon’s testimony as it related to the standard of care because he failed the 50 percent test set forth in K.S.A. 60–3412. The statute states, “In any medical malpractice liability action. . , in which the standard of care given by a practitioner of the healing arts is at issue, no person shall qualify as an expert witness on such issue unless at least 50% of such person's professional time within the two-year period preceding the incident giving rise to the action is devoted to actual clinical practice in the same profession in which the defendant is licensed.” Specifically, the thoracic surgeon failed to state affirmatively that he spent at least 50 percent of his professional time in actual clinical practice. Additionally, the motion requested that the court exclude any standard of care testimony from the parties’ expert witnesses about their personal treatment preferences.


The trial court excluded the thoracic surgeon’s testimony as to the standard of care for failure to meet the 50 percent test. The trial court also held that neither party's physician witnesses could give standard of care testimony on direct examination based on their personal treatment preferences. Having excluded both such testimony, the court granted the defendant’s motion for summary judgment. The court of appeals affirmed the trial court.


The Supreme Court of Kansas reversed the lower courts’ decisions. The court held that the district court's grant of summary judgment was improper because the trial court’s factual determination that the plaintiff’s thoracic surgeon did not spend at least 50 percent of his professional time in actual clinical practice was not supported by substantial competent evidence. His testimony supported at least 3 1/2 days to 4 days of each 7–day week on direct patient care. Hands-on resident supervision and consultation and his own clinical research necessary to provide patient care accounted for still more of his professional workweek. Evaluation of whether he met the 50 percent requirement required a holistic reading of his description of his clinical practice in an academic setting, including all of his varied patient care activities.


Because of its likelihood to arise on remand, the court also held that physicians’ testimony with regard to their own treatment preferences may not be used to prove the standard of care in medical malpractice cases. Testimony as to treatment preferences cannot be introduced by either party on direct examination of its expert witnesses to prove the standard of care. Treatment preferences may be explored on cross-examination in order to test credibility, though a limiting instruction might be in order.


See: Schlaikjer v. Kaplan, 2013 WL 276532 (Kan., January 25, 2013) (not designated for publication).